9911796707
TMI Blog2019 (7) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... 72(2) and 36(1) of the Karnataka Value Added Tax Act, 2003 as well as consequential notices of demand issued by respondent No.3. 3. The petitioner is a partnership firm engaged in the activities of manufacture and sale of cement bricks and paver bricks. The petitioner is registered under the provisions of the Karnataka Value Added Tax Act, 2003 ('KVAT Act' for short) and Central Sales Tax Act, 1956 ('CST Act' for short). The re-assessment under Section 39(1) of the KVAT Act was carried out for the relevant tax periods and the same was concluded levying VAT on bricks at 5%/5.5%. Subsequently, proceedings under Section 39(2) of the KVAT Act were initiated to bring the paver bricks under the Residuary Entry to be taxed at 14%/14.5%. After pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e KVAT Act were invoked. Period of limitation for reassessment under Section 39 as provided under Section 40 is five years after end of the prescribed tax period. Hence, the orders impugned passed under Section 39(2) of the KVAT Act deserve to be set aside. 5. Learned counsel for the petitioner has placed reliance on the following judgments: 1. M/s. Amma Construction India Pvt. Ltd., vs. The Assistant Commissioner of Commercial Taxes and others; 2. Dy. Commissioner of Income Tax and Ors. vs. M/s. Simplex Concrete Piles (India) Limited; 3. M/s Kotak Mahindra Prime Limited vs. The State of Karnataka and others. 6. Learned Additional Government Advocate appearing for the revenue referring to Section 41 of the KVAT Act relating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding anything contained in this Act, authority concerned may proceed to rectify such assessment or re- assessment or order and determine the tax payable by the dealer in accordance with such judgement or order at any time within a period of three years from the date of such judgement or order. (2) Where any court makes an order or gives judgement to the effect that any tax assessed under this Act or any other law should have been assessed under a provision of a law different from that under which it was assessed, then in consequence of such order or judgement or to give effect to any finding or direction contained in any such order or judgment, such turnover or part thereof, may be assessed or re-assessed to tax, as the case may be, at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 80HH of the Act, which view was squarely reversed by the subsequent judgment of the Hon'ble Apex Court. The subsequent reversal of the legal position by the judgment of the Hon'ble Supreme Court does not authorise the Department to reopen the assessment, which stood closed on the basis of the law, as it stood at the relevant time. 12. This Court in the case of M/s. Amma Construction, supra, held that the Assessing Authority had no jurisdiction to invoke Section 39(2) of the KVAT Act since there was no further evidence which came to the notice of the Assessing Authority. 13. The arguments of the learned counsel for the petitioner that the Division Bench order is not having any binding effect pursuant to the order of the Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Authority concerned is empowered to rectify such orders and determine the tax payable by the dealer in accordance with the judgment or order of the Court within a period of three years from the date of such judgment or order. Hence, the Assessing Authority invoking the provision under Section 39(2) of the KVAT Act may not be appropriate, more particularly to give effect to the order of the Hon'ble Apex court dated 18.11.2016. The legal flaw found in the orders impugned does not merely relates to wrong quoting of the provision. In essence invoking of powers under the specific provision has to be made known to the assessee as the powers of re-assessment under Section 39[2] and rectification under Section 41 are exercisable in different fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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